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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LATEST SUPREME COURT JUDGEMENTS
 

KASAB CASE: Death Sentence

This is a case of terrorist attack from across the border. It has a magnitude of unprecedented enormity on all scales. The conspiracy behind the attack was as deep and large as it was vicious. The preparation and training for the execution was as thorough as the execution was ruthless. The accused, Mohammed Ajmal Kasab, a Pakistani national, as also other nine terrorists, his co-conspirators used highly lethal weapons such as AK-47 rifles, 9 mm pistols, and grenades and RDX bombs and killed 166 people and injured, often grievously 238 people. The dead included 18 policemen and other security personnel and 26 foreign nationals. Of those dead, at least 7 were killed by the appellant personally, about 72 were killed by him in furtherance of the common intention he shared with deceased accused and the rest were victims of the conspiracy to which he was a party along with the nine dead accused and 35 other accused who remain to be apprehended and brought to court.

As observed, in terms of loss of life and property, and more importantly in its traumatizing effect, this case stands alone or it is at least the very rarest of rare to come before the Supreme Court since the birth of the Republic. Therefore, it should also attract the rarest of rare punishment. Against all this, the only mitigating factor is the appellant's young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation. The Supreme Court has held 'to hold back the death penalty in this case would amount to obdurately declaring that this court rejects death as lawful penalty even though it is on the statute book and held valid by Constitutional Benches of this court.'

TIHAR JAIL: Wages to Convicts

The rate of wages provided to convicts in Tihar Jail is prepared by a Wage Fixation Committee constituted by the Principal Secretary (Home), Government of NCT of Delhi. The said Committee comprises of: (i) DIG (Prisons) as Chairperson, (ii) Dy. Secretary (Finance Expenditure) and (iii) Deputy Commissioner of Labour as Members. The Committee decides wages keeping in view the present economic scenario, minimum wages notified by the Government of Delhi for workers, the expenses on the upkeep of a prisoner and deduction towards the Welfare Fund. The scale of wages paid to prisoners in various States are also taken into consideration.

A person sentenced to simple imprisonment cannot be required to work unless he volunteers himself to do the work. But the jail officer who requires a prisoner sentenced to rigorous imprisonment to do hard labour would be doing so as enjoined by law and mandated by the court. Thus, while a person, sentenced to simple imprisonment has the option of choosing to work, a person sentenced to rigorous imprisonment is required by law to undergo hard labour. The undertrials are not required to work in jail.

Phool Kumari v. Office of the Supt. Central Jail , Tihar , Crl. A. No. 1186 of 2012; Decided on 9-8-2012 (SC) [P. Sathasivam and Ranjan Gogoi, J J.]

CHILD CUSTODY: Writ of Habeas Corpus not to be issued

As held by the Supreme Court of India, a writ of habeas corpus is not to be issued in the matter of course, particularly when the writ is sought against a parent for the custody of a child.

In the instant case, after one and a half years since the birth of their son, both the wife and the son were allegedly driven out of the matrimonial house by the husband and her in-laws. The husband filed a divorce petition under section 13(1)(a) of the Hindu Marriage Act. In the said case by an ex-parte order, the family court granted a decree of judicial separation between the parties. The wife filed a petition for return of stridhan and for maintenance. The Court allowed a maintenance of ` 5,000 each in favour of the wife and the son but the husband has not paid any amount towards maintenance and is in default of the court's order. The husband then filed the petition for writ of habeas corpus with a wrong address. The High Court while issuing a notice to the wife making it returnable within four weeks, called upon her to produce the son. As the lawyer engaged by the wife failed to appear, the High Court issued a non-bailable warrant against the wife. The Supreme Court held that no case was made out for issuance of a writ of habeas corpus and that the said case was filed with a wrong address to mislead the High Court. Though the son was residing with the mother, an allegation had been made that the son had been illegally detained by his mother. The Supreme Court dismissed the writ petition as not maintainable.

Rashmi Ajay Kumar Kesharwani v. Ajay Kr. Kesharwani , 2012 (7) SCALE 200 (SC) (Decided on 12-3-2012)

LITIGATION: Trivial Disputes in Supreme Court

As observed, number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and their instrumenalities Banks, nationalized or private, come to courts. The Apex Court has condemned this type of practice while holding that unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, courts jurisdiction cannot be invoked for resolution of small and trivial matters.

In the instant case, jurisdiction of the Supreme Court was invoked by a Gramin Bank on an issue on which no question of law arose for consideration. A loan was availed of from a Gramin Bank to purchase a buffalo and the same was insured for ` 15,000. The buffalo unfortunately died after about nine months. The complainant, bank customer lodged a claim for insurance money through the bank but no steps had been taken either by the bank or the insurance company. She then filed a consumer complaint. The District Consumer Forum directed the insurance company to pay the insurance money of the buffalo to the complainant. The Bank, dissatisfied with the order filed appeal before the State Commission and then before the National Commission which were dismissed. The Bank filed the Special Leave Petition against the order of the National Commission. For a paltry sum of ` 15,000 bank had already spent a total sum of ` 12,950 as litigation expenses, leaving aside the time spent. Issues raised before the Supreme Court were purely questions of facts examined by the three Consumer Fora. The Supreme Court held that these types of litigation should be discouraged and that Gramin Bank like appellant should stand for the benefit of the Gramins and not to drive them to litigation leading them extreme penury.

Gurgaon Gramin Bank v. Smt. Khazani , Civil Appeal No. 6261 of 2012; Decided on 4-9-2012 (SC) [K.S. Radhakrishnan and Dipak Misra, JJ.]

MEDICAL ADMISSIONS IN DELHI UNIVERSITY: Nominees of Government of India (NGoI)

Delhi University Bulletin for academic session 2011-2012, for admissions to MBBS course in three Medical Colleges, namely, Lady Harding Medical College (LHMC), Maulana Azad Medical College (MAMC) and University College of Medical Sciences (UCMS), shows that 30 out of 150 seats in LHMC and 6 out of 200 seats in MAMC in the MBBS course are reserved for Nominees of Government of India (NGoI). Out of a total of 500 MBBS seats in the three government colleges of Delhi University, 36 seats are reserved for NGoI. Appellants filed writ petition challenging the legality and constitutionality of the policy decision of the Central Government in reserving the seats in favour of the NGoI.

The Supreme Court has held that the Bulletin insofar as it reserves 30 seats in the MBBS course in LHMC for NGoI is not ultra vires the Constitution and insofar it exempts candidates to be admitted to these 30 seats from taking the Delhi University Medical Entrance Test (DUMET) is not ultra vires the MCI Regulations. However, it has been directed that with effect from the academic year 2012-2013, no admission will be made to any of the seats reserved for NGoI in LHMC, MAMC of any student who has failed in DUMET. For the academic year 2013-2014 onwards, the candidate applying for seats reserved for NGoI have to obtain the minimum marks in the All India National Eligibility-cum-Entrance Test and the admissions will be made on merit after calling for applicants through advertisement in the newspapers having wide circulation.

The Central Government has been directed to make a review of the government and private medical colleges which have been established in the meanwhile in the State/Union Territories to which seats are being allocated under the quota for NGoI and if they find that additional intake capacity for the MBBS course has been created in these States/Union Territories, the Central Government will take a fresh decision on the number of seats in the MBBS course to be reserved for NGoI in these States.

Bhawna Garg v. University of Delhi, Civil App. Nos. 6304-6305 of 2012; Decided on 5-9-2012 (SC) [A. K. Patnaik and Swatanter Kumar, JJ.]

RITA ARYAN
LL.M. (Medalist)

 
 
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